British soldier interrogating Iraqi prisoners at the Shaibah Logistics Base

Despite its size and the number of years it took to compile, the Chilcot Report, published last Wednesday, made only passing mention to the more than 1000 legal cases lodged by Iraqi civilians, alleging torture and unlawful killing by the British military. These cases are not only still being heard by the British authorities but also the International Criminal Court. Moreover, mllions of pounds in damages have already been awarded – an indication that the claims were/are valid. And the implication of course is that if the courts are agreeing that unlawful killing and/or torture took place by the British forces in Iraq, then responsibility for what happened should not merely limited to front-line troops, but to their commanders and, ultimately, those in government who authorised the operations. And that would include the ministers in charge of Defence and Foreign Affairs, as well as other relevant ministers, including the Prime Minister. An update on these legal claims is given below…

In the meantime it is interesting to note that there are moves afoot to seek prosecution of Tony Blair for misfeasance in office and, contrary to what has been stated so far, for war crimes.

Further, last week an ICC (International Criminal Court) prosecutor, Fatou Bensouda, issued a statement making it clear that comments in the media on how Tony Blair could not be prosecuted for war crimes were, in fact, inaccurate. Bensouda explained:

“Once a decision is made to open an investigation in any given situation, my Office may investigate and prosecute any individual suspected of committing crimes within the Court’s jurisdiction, namely war crimes, crimes against humanity or genocide. We do this work without fear or favourand irrespective of the official capacity of the perpetrator(s). In accordance with the scope of my Office’s policy, in fact, as a general rule, my Office will prosecute those most responsible for the commission of these serious crimes. The warrants of arrest issued to date by the Court have been line with this policy and principled approach.”

A. Introduction

The cases currently being examined have been brought by Iraqi civilians in both the British courts and at the International Criminal Court, alleging torture by British troops. The British Government has already settled 323 cases, with compensation totaling some £19.6 million. In the UK courts the Iraq Historic Allegations Team has fielded 3,363 cases since it was founded in 2010, including 325 that involved unlawful killings by British troops.

In late 2014 the Al-Sweady Inquiry cleared British soldiers of war crimes in Iraq and, instead, blamed lawyers – Leigh Day and PIL – who represented the victims of those alleged crimes. However, some of the cases investigated by that Inquiry – notably those associated with the Shaibah Logistics Base – are still being examined by the International Criminal Court as part of their wider investigation into more than 1200 cases of alleged UK war crimes in Iraq.

Two other investigations into alleged war crimes in Iraq by British military and intelligence – that of the Iraq Historic Allegations Team (IHAT) and the Service Prosecuting Authority (the UK miltary equivalent of the Crown Prosecution Service) – are continuing.

Updates on all three inquiries/investigations are given below, as well as a summary of some of the more prominent cases.

B. Details of the allegations

In June 2012, The Mail on Sunday reported it could reveal claims of abuse carried out by British soldiers at a secret network of illegal prisons in the Iraqi desert. 64 Iraqi prisoners, picked up by the Australian SAS on April 12, 2003, were taken away on two RAF helicopters to a ‘black site’ prison at an oil pipeline pumping station. The pumping station, known as H1, was run jointly by British Forces and the American CIA. One of the 64 men, Tariq Sabri, was allegedly kicked to death by a member of the RAF regiment aboard one of the Chinooks. Another man who survived was unconscious and unresponsive when the flight landed, and a third lost his prosthetic legs. According to an RAF report, the two unconscious men – one of them, Mr Sabri – were loaded, face down, into a Humvee high-mobility tactical vehicle, one on top of the other. By the time it reached the camp, Mr Sabri was dead. The final fate of the surviving 63 prisoners remains unknown. Lieutenant Colonel Nicholas Mercer, the chief British Army lawyer in Iraq during the 2003 invasion, is reported to have stated that “These are alleged war crimes, but what Britain did may never be disclosed.”

Allegations were also made against troops in the wake of the killing of Baha Mousa, a Basra Iraqi hotel worker who died in 2003 while in British custody, and the Battle of Danny Boy in 2004, where it is alleged that British soldiers tortured and murdered Iraqi gunmen after a firefight (the Al-Sweady Inquiry dismissed the latter allegations). Interrogations by British military personnel involved young Iraqi men of 18, 19, and 20, some seriously injured with gunshot wounds, being stripped naked, forced to stand, not given appropriate medical treatment, and threatened with violence whilst still under the shock of capture in the middle of the night.

Following the death of Baha Mousa, one British soldier, Corporal Donald Payne, admitted being guilty of inhumane treatment of detainees and was jailed for one year. He became the first and only British soldier to admit a war crime. Six other soldiers were acquitted. The judge found that Mousa and several other men had been subjected to a series of assaults over 36 hours, but a number of charges had been dropped because of “a more or less obvious closing of ranks”.

A further 14 claims of torture have been made against the British Army, including how a team of military and MI5 interrogators allegedly authorised the physical and sexual abuse of Iraqi detainees at the Shaibah Logistics Base between 2004 and 2007 (now being investigated by the ICC despite rejection of the allegations by Al-Sweady Inquiry). Nearly all the men say they were beaten, denied sleep and dragged around the prison compound before facing multiple interrogations. In one account the interrogators are accused of creating an image superimposing a suspect’s head on the body of a man who is sexually abusing a child, and then threatening to disseminate the image throughout Basra. In another, a detainee, held in solitary confinement for 36 days, alleged interrogators threatened to rape his wife and kill his children. Many of the detainees’ witness statements appear to corroborate each other by referring to named soldiers responsible. According to the Iraqis’ solicitors, the interrogators were a mix of military, MI5 and civilian staff who took their orders from London.

When evidence of the above atrocities first surfaced in the British media in 2012, Lieutenant Colonel Nicholas Mercer, the chief British Army lawyer in Iraq during the 2003 invasion, said that what went on in the secret prison network amounted to ‘war crimes’. ‘The allegations are blatant violations of the Geneva Conventions and UN Convention Against Torture’, Mercer commented. “If indeed prisoners were rendered beyond Iraq’s borders, then this is potentially one of the most serious war crimes under the Rome Statute.

’Senior Conservative MP David Davis commented, ‘I find it astonishing that the military authorities responsible for the legality of prisoner detention were not even notified about these secret camps. If these allegations are substantiated, they amount to a serious blow to the rule of law’.

C. ICC dossier

The International Criminal Court at The Hague is currently investigating alleged war crimes committed by British military and intelligence personnel in Iraq, involving torture, abuse of legal process, rendition and illegal detention.

The ICC has stated the following:

“On 10 January 2014, the Office of the Prosecutor received a new communication from the European Center for Constitutional and Human Rights (“ECCHR”) together with the Public Interest Lawyers (“PIL”), alleging the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. The United Kingdom deposited its instrument of ratification of the Rome Statute on 4 October 2001. The ICC has therefore jurisdiction over war crimes, crimes against humanity and genocide committed on the territory of the United Kingdom, or by UK nationals as of 1 July 2002, representing the date of the entry into force of the Rome Statute.”

The ICC is examining 1268 cases of alleged ill-treatment and unlawful killing by British personnel in Iraq. Some 259 civilian deaths will also be examined, including that of “at least 47 Iraqi persons who reportedly died in UK custody and others who were allegedly killed by UK services personnel in situations outside of custody”.

The alleged ill-treatment reportedly involved, inter alia, the following techniques: hooding of detainees; the use of sensory deprivation and isolation; sleep deprivation; food and water deprivation; the use of prolonged stress positions; various forms of physical assault, including beating, burning and electrocution or electric shocks; direct and implied threats to the health and safety of the detainee and/or friends and family, including mock executions and threats of rape, death, torture, indefinite detention and further violence; environmental manipulation, such as exposure to extreme temperatures; forced exertion; cultural and religious humiliation; and various forms of sexual assault and humiliation, including forced nakedness, sexual taunts and attempted seduction, touching of genitalia, forced or simulated sexual acts, as well as forced exposure to pornography and sexual acts between soldiers.

Here is a copy of the Preliminary Investigation by the ICC, compiled in 2014 (the relevant sections are on pages 11 – 13, sub-sections 42 – 57).

According to the ICC report, “alleged crimes occurred in 14 military detention facilities and other locations under the control of UK Services personnel in southern Iraq. As well as the crimes associated with the Shaibah Logistics Base, the ICC will be examining alleged crimes at the following facilities: ‘The Guesthouse’, Camp Akka, the Provincial Hall and the Civil-Military Co-Operation House, Camp Abu Naji, Camp Breadbasket, the Shatt-Al Arab Hotel, Basra Palace and Camp Bucca.

The British government has already settled 323 cases submitted to the ICC – totaling some £19.6 million in compensation awarded.

Full details of the ICC examination of war crimes and unlawful killings of Iraqis by British forces can be found here (pages 8-10).

Note that any war crime shown to have been committed by British servicemen or servicewomen is also an offence under English law by virtue of the International Criminal Court Act 2001.

To date, more than 300 British soldiers have been sent letters by the IHAT, questioning their role in torture reports that emanated during and following the Iraq War. However, it is understood that the number could reach up to 1000.

The Iraq Historic Allegations Team is currently investigating alleged instances of prisoner abuse by British Service Personnel and deaths in custody in Iraq. These allegations involve over 140 Iraqi civilians. Louise Thomas, an official working who was with the inquiry team but who says she resigned in protest at the lack of progress, spent six months with the inquiry and had seen 1,600 videos of interrogation sessions. The alleged abuse took place at a joint services interrogation centre under the Joint Forces Interrogation Team, which operated at three locations in the Basra area between March 2003 and December 2008. IHAT is reported to have now identified more than 100 serving and former members of the armed forces who they want to interview relating to the alleged torture and abuse of Iraqi civilians. That number is expected to increase significantly.

The IHAT have listed, separate to the ICC list, 1339 cases of alleged abuse by UK military in Iraq. To see this list, click here. Here is a copy of the last update report by the IHAT.

The Service Prosecuting Authority – the military equivalent of the Crown Prosecution Service – is additionally investigating 35 alleged unlawful killings as well as a further 36 cases of potential abuse and mistreatment during the war. It is also expected to investigate a further 20 cases of unlawful killing and 71 cases of mistreatment.